Updated February 3, 2021
Defense Primer: Acquiring Specialty Metals and Sensitive
Materials
Some metals (such as titanium and tungsten) and metal
FY2002 National Defense Authorization Act (NDAA, P.L.
alloys, as well as strong permanent magnets known as rare
107-107). In 2006, the FY2007 NDAA (P.L. 109-364)
earth magnets, are critical to U.S. Department of Defense
moved the specialty metal-related provisions from 10
(DOD) operations. These materials are frequently
U.S.C. §2533a to 10 U.S.C. §2533b.
integrated into components (e.g., integrated circuits,
The domestic sourcing mandate for specialty metals only
electrical wiring, or optoelectronic devices) or structures
applies to the Defense Department.
(e.g., aircraft fuselages or ship hulls) of the military
platforms and weapon systems that enable warfighting
Applicability of Restrictions
capabilities.
The specialty metals domestic sourcing restrictions apply to
all DOD prime contracts and subcontracts. For the purposes
A rare earth element is one of 17 chemical elements, including
of the restriction, 10 U.S.C. §2533b defines a specialty
the 15 metallic chemical elements with atomic numbers 57
metal as any of the following metals or metal alloys:
through 71, as well as the chemically similar elements
Steel with a maximum alloy content exceeding one or
scandium and yttrium. These materials are considered rare in
more of the following limits: manganese, 1.65%;
spite of their relative abundance throughout the Earth’s crust,
silicon, 0.60%; copper, 0.60%; or containing more than
as the extraction and production of such materials can be
0.25% of any of the following elements: aluminum,
difficult and costly. Rare earth magnets produced using rare
chromium, cobalt, niobium (columbium), molybdenum,
earth elements are the strongest known permanent magnets.
nickel, titanium, tungsten, or vanadium.
Metal alloys consisting of nickel, iron-nickel, and cobalt
There are few, and, in some cases, no known alternatives
base alloys containing a total of other alloying metals
for many of these materials, which often have unique
(except iron) in excess of 10%.
physical properties, such as high material strength coupled
Titanium and titanium alloys.
with low density, or resistance to various forms of
Zirconium and zirconium base alloys.
corrosion. Many of these materials are subject to sourcing
restrictions or prohibitions in DOD acquisitions. Congress
DOD uses the foundry location where the final melting or
established these restrictions or prohibitions to protect the
similar production of a specialty metal takes place to
domestic materials industry and ensure the United States
determine its origin. For example, titanium sponge—
maintains critical production capabilities and capacity
unwrought titanium that has not been melted—that has been
within the defense industrial base. Statutory restrictions
manufactured in Kazakhstan, shipped to the United States,
establish that some items that incorporate certain metals and
and melted into ingots at a foundry in Ohio would be
metal alloys known as specialty metals generally must be
considered compliant with the specialty metals domestic
produced or manufactured in the United States. Other
sourcing mandate. Under the specialty metals restrictions,
statutory prohibitions establish that some items that
DOD generally may not acquire certain military platforms
incorporate certain sensitive materials may not be acquired
or weapon systems—or components of these platforms and
from specified sources.
systems—that contain any amount of a specialty metal that
was not melted or produced in the United States.
Sourcing Restrictions in Acquisitions
The restriction applies to aircraft; missile and space
systems; ships; tank and automotive items; weapon
For more information, see CRS Report R43354, Domestic
systems; and ammunition. DOD and its prime contractors
Content Restrictions: The Buy American Act and Complementary
are also prohibited from directly acquiring any specialty
Provisions of Federal Law.
metal (e.g., metal sheets, rods, plates) if it was not melted or
produced in the United States.
Acquiring Specialty Metals
Exceptions
Domestic sourcing restrictions for DOD acquisition of
Law and policy provide a number of exceptions to the
specialty metals first appeared in the FY1973 DOD
specialty metals sourcing mandate, including the following
appropriations bill (P.L. 92-570) as an expansion of
selected examples:
domestic content restrictions on Departmental purchases of
food, clothing, and other goods. These restrictions are
circumstances where the Secretary of Defense or a
commonly known as the Berry Amendment. The Berry
secretary of a military department determines that
Amendment sourcing restrictions were included in annual
compliant specialty metal of satisfactory quality and
DOD appropriations legislation from 1941 until 2002, when
sufficient quantity, and in the required form, cannot be
they were permanently codified as 10 U.S.C. §2533a by the
procured as and when needed;
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Defense Primer: Acquiring Specialty Metals and Sensitive Materials
acquisitions outside the United States in support of
countries. The prohibitions apply to aircraft; missile and
combat operations or contingency operations;
space systems; ships; tank and automotive items; weapon
acquisitions for which the use of other-than-competitive
systems; and ammunition. DOD is also generally prohibited
procedures has been approved when the need for
from selling covered materials from the National Defense
materials or end items is of an unusual and compelling
Stockpile to the specified nations, or to any third party
urgency;
reasonably believed to be acting as a broker or agent for a
acquisitions where the prime contract is at or below the
covered nation or an entity in a covered nation. The
simplified acquisition threshold (generally $250,000);
National Defense Stockpile was established by Congress in
situations where an acquisition furthers an international
1939 (50 U.S.C. §98 et seq.) to acquire and retain strategic
agreement (e.g., trade or offset agreements) with a
and critical materials to decrease or prevent the potential
qualifying country;
dependence of the United States on foreign sources for
purchases of electronic components, such as diodes or
supplies of these materials in times of national emergency.
integrated circuits, unless the Secretary of Defense,
Exceptions
pursuant to a recommendation of the Strategic Materials
Law and policy provide limited exceptions to these
Protection Board, determines that the domestic
prohibitions, applicable to
availability of a particular electronic component is
critical to national security;
circumstances where the Secretary of Defense
covered items incorporating specialty metals that were
determines that compliant materials of satisfactory
not melted in the United States if the total amount of
quality and quantity, in the required form, cannot be
noncompliant specialty metals in such an item does not
procured as and when needed at a reasonable price;
exceed 2% of the total weight of specialty metals in the
procurement or sale of covered materials, or end items
item;
containing such materials, outside of the United States
commercially available off-the-shelf (COTS) items
for use outside of the United States;
containing specialty metals, except in certain
acquisitions at or below the simplified acquisition
circumstances;
threshold;
acquisitions of some commercially available items (e.g.,
purchase of a COTS end item containing covered
fasteners, high-performance magnets);
materials, barring COTS end items that are comprised of
acquisition of commercial derivative military articles in
50% or more of covered sensitive materials by weight,
certain circumstances; and
or mill products (e.g., metal sheets) that have not been
items containing noncompliant materials if the
incorporated into an end item or component;
acceptance of such items is necessary to the national
purchase of electronic devices containing covered
security interests of the United States.
materials, unless the Secretary of Defense, pursuant to a
Acquiring Sensitive Materials
recommendation of the Strategic Materials Protection
Board, determines that the domestic availability of a
DOD sourcing restrictions for the acquisition of sensitive
particular electronic device is critical to national
materials first appeared in the FY2019 NDAA (P.L. 115-
security; or
232). These restrictions were permanently codified as 10
purchase of an end item containing a neodymium-iron-
U.S.C. §2533c. In contrast to the specialty metals
boron magnet manufactured from recycled material if
restrictions, 10 U.S.C. §2533c establishes that these
the milling of the recycled material and sintering of the
materials, or finished products containing these materials,
final magnet takes place in the United States.
may not generally be sourced from four specific countries:
the Democratic People’s Republic of Korea, the People’s
Relevant Statutes and Regulations
Republic of China, the Russian Federation, or the Islamic
Republic of Iran.
Title 10, U.S. Code, §2533b and §2533c
These sourcing prohibitions only apply to the Department
DFARS Subparts 225.7003 and 225.7018
of Defense.
CRS Products
Applicability of Prohibitions
CRS In Focus IF10548, Defense Primer: U.S. Defense Industrial
The sourcing prohibitions for sensitive materials apply to
Base
all DOD prime contracts and subcontracts at any tier.
Covered materials include
CRS In Focus IF11311, Defense Primer: The National Technology
and Industrial Base
samarium-cobalt magnets;
CRS In Focus IF10609, Defense Primer: The Berry and Kissell
neodymium-iron-boron magnets;
Amendments
tungsten metal powder;
tungsten heavy alloy or any finished or semi-finished
CRS In Focus IF11574, National Stockpiles: Background and
component containing tungsten heavy alloy; and
Issues for Congress
tantalum metals and alloys.
CRS Report R46618, An Overview of Rare Earth Elements and
Related Issues for Congress
Under these sourcing prohibitions, DOD generally may not
directly acquire sensitive materials that were mined,
refined, separated, or melted in the four specified countries,
or military platforms or weapon systems containing
Heidi M. Peters, Analyst in U.S. Defense Acquisition
sensitive materials melted or produced in the four specified
Policy
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Defense Primer: Acquiring Specialty Metals and Sensitive Materials
IF11226
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https://crsreports.congress.gov | IF11226 · VERSION 6 · UPDATED